New York Times
February 12, 2010

Plan for Casino in Richmond Raises Fears of a Bad Precedent

By FRANCES DINKELSPIEL
A plan to build a Las Vegas-style casino complex on an isolated promontory on San Francisco Bay has drawn broad support in Contra Costa County, but detractors fear that its approval will unleash a new round of gambling places in urban areas.
The Guidiville Band of Pomo Indians and a development company argue that the promontory, Point Molate in Richmond, should be transferred to the tribe. Although the 112-member Guidiville Band’s current home is near Ukiah in Mendocino County, about 100 miles north, its members contend that their ancestors once roamed the shores of the bay, which gives them a claim to the territory under a federal law.
The tribe is seeking the land, which once held the world’s largest wine processing facility and then a Navy fuel depot, under a “restored lands” provision of the Indian Gaming Regulatory Act, passed by Congress in 1988.
“There is abundant evidence that they used to own this land for a long time,” said Michael Derry, the chief executive of the Guidiville Band, one of 109 tribes in California potentially eligible to file similar requests. Such requests could open areas like San Diego, Sacramento and Los Angeles to casinos, which is expressly against the wishes of voters. In March 2000, Proposition 1A, designed to steer Indian gambling into rural areas, passed with 65 percent of the vote.
“What land qualifies for gaming?” said Cheryl Schmit, who runs the anti-gambling group Stand Up for California. “It has to be something more than ‘we had a summer camp there.’ The tribe has to demonstrate they had authority and jurisdiction over the land for an extended period of time. The Guidiville can’t do that on Point Molate.”
The future of the 220-acre promontory has been debated since 1995, when the federal government closed the Point Molate Naval Fuel Depot, which had serviced the Pacific Fleet for 53 years. A bill sponsored by then-Representative Ron Dellums transferred the land from the Navy to Richmond in 2003.
Shortly, the city entered into an agreement to develop Point Molate with Upstream, an Emeryville development company. Upstream formed a partnership with the Guidivilles to build a $1.2 billion resort with two luxury hotels, a casino with 4,000 slot machines, an entertainment complex, a shopping center, tribal offices, a public ferry terminal and housing.
Upsteam has also agreed to clean up the pollution left by the Navy, restore most of the winery’s historic buildings and install solar panels.
The casino could bring in as much as $500 million a year, said William Thomas, a professor of public administration of the University of Nevada at Las Vegas. The promise of a share of that revenue for Richmond, one of the Bay Area’s poorest cities, has softened much of the opposition. While Mayor Gayle McLaughlin opposes the project, a majority of the Richmond City Council supports it, in part because the developer will pay the city $50 million for the property and another $20 million annually.
Contra Costa County spent more than $1 million hiring experts to refute the Guidiville Band’s claims that it has historic ties to Point Molate, but withdrew its opposition in November after the developer promised to pay the county at least $12 million a year.
Maria Viramontes, a Richmond councilwoman who originally voted against the casino in 2003, recently said, “It’s an opportunity to bring investment to Richmond if it’s done properly.”
The casino is the key to making the development profitable, and the Guidiville Band faces significant challenges in getting it approved. It must first get the Bureau of Indian Affairs to approve its “restored lands” application, then have the land transferred into a trust and finally negotiate a gambling compact with the State of California. With the environmental requirements included, the process could take years.
The first barrier, and the most critical one, is proving to federal officials that the tribe has both significant modern and historical ties to Point Molate. In 1988, Congress limited casinos to reservation land already owned by Native Americans, but it included a few exceptions like the restored-lands provision.
When California became a state in 1849, more than 300,000 Indians lived here, but their numbers quickly dwindled as they were driven out or died from disease and poverty. Since then, the federal government has promised land to tribes, reneged and taken away control of reservations. The Guidiville Band was left landless, but regained federal recognition in 1991.
Pomos traditionally lived in northern Sonoma and Mendocino Counties. But the Guidivilles are also descendants of Coast Miwok and Costanoan tribes who once lived around the north end of San Francisco Bay, and those historic ties are what make Point Molate eligible as “restored lands,” said Mr. Derry. Federal law does not require that Indians have lived on the land they seek, only that they have ties to it.
The tribe spent $2 million in 2006 to prepare a report to prove its historical connection to the bay. It cited evidence of habitation including entries in a log of a Spanish ship that visited the bay in the 18th century. The sailors noted that their Indian visitors were dressed in clothes made of tule grass — garb that closely resembles the traditional clothes of the Coast Miwok and the Costanoans, Mr. Derry said.
But other California Indians disagree and worry that the Guidivilles’ move will trample their own rights. Nelson Pinola, chairman of the Manchester-Point Arena Band of Pomos, said in a Jan. 10 letter to tribal leaders that the Guidivilles’ historic connections are to land in Mendocino County, not Contra Costa County.
“If one tribe with no historical connection to its proposed casino site is given the restored-lands exception,” Mr. Pinola said, “others are sure to follow.”
Why, he asked, “would urban customers continue to make the effort to visit on-reservation casinos of tribes like mine which are located far from urban areas?”
Tom Gedes, an adjunct professor of federal Indian law at the University of the Pacific, called the Guidivilles’ proposal a blatant example of “reservation shopping,” where non-Indian developers seek out Indians to front for a project.
“If this is approved for recognition as a restored land on fairly tenuous grounds, it would provide an incentive for other reservation-shopping opportunities,” Mr. Gedes said.
California’s senators, Barbara Boxer and Dianne Feinstein, both Democrats, have publicly opposed taking off-reservation land into trust for gambling purposes. That is where the influence of former Senator William S. Cohen of Maine, a partner in Upstream, may come in. His political connections and stature in Washington will help the Guidivilles’ case get a careful review, said Ms. Schmit of Stand Up for California.
Gov. Arnold Schwarzenegger, a Republican, also opposes urban casinos, but with the state’s huge deficit, approving a casino that could add $25 million a year to state coffers may be hard to resist, said Nelson Rose, a senior professor at Whittier Law School.
“We’ve tried to develop Point Molate as a complete community where members can live, work, worship and recreate,” Mr. Derry said. “That’s what’s really unique about this. It’s true land restoration, versus just chasing a piece of land to do gaming on.